Town of Vernon v. Edgeworth

• Decision Date: 22 November 1906
• Citation: 42 So. 749,148 Ala. 490
• Parties: TOWN OF VERNON v. EDGEWORTH.
• Court: Alabama Supreme Court

42 So. 749

148 Ala. 490

TOWN OF VERNON v. EDGEWORTH.

Supreme Court of Alabama

November 22, 1906

Appeal from Circuit Court, Lamar County; S. H. Sprott, Judge.

Action by Nathaniel Edgeworth against the town of Vernon. From a judgment for plaintiff, defendant appeals. Affirmed.

Walter Nesmith, for appellant.

W. A Young, for appellee.

DENSON J.

In this action the plaintiff seeks to recover of the defendant, town of Vernon, a municipal corporation, damages alleged to have accrued to plaintiff by the alleged maintenance of a nuisance, to wit, a privy for public use, near the dwelling of the plaintiff in said town. The amended complaint on which the cause was tried consists of 5 counts. It was demurred to on 13 grounds, all of which were overruled by the court; and the first 13 grounds in the assignment of errors present for review the ruling of the court on the demurrer. Only 3 points are presented in the argument and brief of appellant's counsel with respect to these grounds of error, and we shall confine ourselves in the discussion of them within the limits set by counsel.

First. It is insisted that the amended complaint fails to show that the privy was erected by authority of the defendant (appellant). This insistence was completely answered by each count of the amended complaint, by the averment, not only that the privy was erected by the defendant, but that it was erected under the power in its charter authorizing it to erect and maintain privies.

Secondly. It is insisted that the demurrer to the amended complaint was wrongfully overruled, "because it was insufficient, in that each count failed to set forth a cause of action." This is a general demurrer or objection, and cannot be considered. Code 1896, § 3303. On the question as to the counts setting out a substantial cause of action, see the following authorities: English v. Progress Electric Light & Motor Co., 95 Ala. 259, 10 So. 134; Mayor and Aldermen of Birmingham v. Land, 137 Ala. 538, 34 So 613; Whaley v. Wilson, 112 Ala. 627, 20 So. 922; Richards v. Daugherty, 133 Ala. 569, 31 So. 934; Bohan v. Port Jervis Gaslight Co. (N. Y.) 25 N.E 246, 9 L. R. A. 711; Miles v. City of Worcester (Mass.) 28 N.E. 676, 13 L. R. A. 841, 26 Am. St. Rep. 264; Clayton v. Henderson (Ky.) 44 S.W. 667, 44 L. R. A. 474; Lowe v. Prospect Hill Cemetery Association (Neb.) 78 N.W. 488, 46 L. R. A. 237.

Thirdly. The insistence is that "each count in the amended complaint fails to set out wherein said privy was negligently constructed, or to set forth any facts which show that said privy was erected negligently." The cause of action does not necessarily arise from or depend upon a negligent construction of the privy. While the town owned the land on which the privy was erected, and may have had exclusive dominion over it, and may subject it to such uses as will subserve the interests of the municipality, it is bound to have respect and regard for the rights of citizens who live on the adjoining lots or near by. "It must make reasonable use of its property, and a reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and that result in material injury to the property and to the comfort of the existence of those who dwell in the neighborhood." There are numerous decisions applying this doctrine, and it may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of the character complained of here. See the case of Bohan v. Port Jervis Gaslight Co. (N. Y.) 25 N.E. 246, 9 L. R. A. 711, where the authorities are collated and discussed; Richards v. Daugherty, 133 Ala. 569, 31 So. 934; Ogletree v. McQuaggs, 67 Ala. 580, 42 Am. Rep. 112; English v. Progress Electric Light & Motor Co., 95 Ala. 259, 10 So. 134. It follows that the assignments of error with respect to the court's ruling on the demurrer to the amended complaint cannot avail to reverse the judgment of the court.

The grounds of error 14 to 20, inclusive, relate to the judgment of the court sustaining demurrers to defendant's special pleas. We shall pass these grounds in the assignment of errors without consideration, for the reason that there is neither argument nor citation of authority in appellant's brief in support of them. Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336, 30 So. 600; Williams v. Spraggins, 102 Ala. 424, 431, 15 So. 247. For the same reason we will not consider the twenty-second, thirty-first, and thirty-third grounds in the assignment of errors.

Whether or not the odors arising from the privy gave the plaintiff and his family physical discomfort was material to plaintiff's case, and evidence thereof was therefore legal, relevant, and material, and the objection on these grounds to the question calling for such evidence was properly overruled.

It was incumbent on the plaintiff to show the privy as maintained was a nuisance. "The use made by one of his property, whereby the unwritten, but accepted, law of decency is violated," may tend to show a nuisance. Hence the court committed no error in allowing plaintiff to prove that he could, while sitting in his dining room, see paper and droppings fall from the privy. Lowe v. Prescott Hill Cemetery (Neb.) 78 N.W. 488, 46 L. R. A. 237, 242.

On cross-examination the plaintiff was asked to state "whether or not there was a public privy at or near the place, within a few feet of the new privy, when you bought your property." The facts hypothesized in the question would not of themselves have prevented plaintiff's recovery; nor were they relevant, at least in the absence of any offer to show how said privy was maintained. Moreover, the question was too indefinite with respect to the property purchased, and this is sufficient justification of the court's ruling sustaining the objection to the question.

The plaintiff on direct examination having testified that the cash value of his home-stead was $300, but that the erection of the privy had diminished its value one-half, "say $150," on cross-examination he was asked, "Would you take $150 for your place now?" The court properly sustained the objection to the question. While diminution in the value by reason of the erection of the privy may be the rule for the admeasurement of damages, market value is meant and what the plaintiff would or would not take for...